LGBT Family Law

Same-Sex Marriage Overview

As of May 2014, same-sex marriage is legal in both Oregon and Washington. With the passage of Referendum 74 in Washington and Oregon’s state constitutional ban on same-sex marriage overturned, these states recognize no legal differences between a same-sex marriage and an opposite-sex marriage. Same-sex marriage licenses issued in either one of these states are also recognized by the federal government, in accordance with the 2013 rulings by the Supreme Court.

Unfortunately for same-sex married couples yearning for legal certainty outside the borders of Oregon and Washington, the picture is not so clear – many states still do not recognize same-sex marriages, even those that are otherwise valid in the state where the marriage license was granted. Until the federal courts (likely the U.S. Supreme Court) decide the issue, there will likely be much legal grey area for same-sex married couples from jurisdiction to jurisdiction. For information about a specific state’s laws, consult with your attorney.

Same-Sex Marriage & Domestic Partnerships in Oregon

At this point, Oregon now has two separate legal statuses for same-sex couples: registered domestic partnerships and marriage. Registered domestic partnerships were enacted by the Oregon legislature in response to the popular voting-in of the constitutional ban on same-sex marriages in Oregon. Registered domestic partnerships, per Oregon statute, grant all legal rights and responsibilities of marriage to same-sex registered domestic partners.

The problems with registered domestic partnerships arise when couples visit states or other jurisdictions that do not recognize domestic partnership as a valid legal status. Hopefully, the issues surrounding the non-recognition of domestic partnerships have been cured by the recent ruling abolishing the ban on same-sex marriage in Oregon.

Same-Sex Marriage & Domestic Partnerships in Washington

In 2012, voters approved Referendum 74, which affected SB 6239, which itself preserves domestic partnerships only for seniors. All existing state-registered domestic partnerships were automatically converted to marriages beginning July 30, 2014, unless at least one party is over 62 years old or unless at least one party opts out of the automatic conversion.

Other LGBTQ Family Law Issues

As Oregon and Washington do not recognize legal differences between same-sex and opposite-sex marriages, there are also no legal differences in other family law issues. A same-sex couple facing divorce or child custody questions will be beholden to the same laws as a heterosexual couple. Review our other family law pages or consult with an attorney if you have further questions.

Aside from the obvious same-gender vs. opposite-gender distinction, in places where same-sex marriage is legal, there is no legal difference between the two.

The distinctions mainly arise when dealing with states or jurisdictions that do not recognize same-sex marriages that are legal in other states. These differences are important because certain rights and benefits of marriage that apply in one state may not apply in another state. For instance, pension survivor benefits can be greatly impacted depending on which jurisdiction a same-sex married couple resides in. For information regarding a specific state’s laws regarding same-sex marriage, speak with your attorney.

Assuming we’re discussing a registered domestic partnership as under Oregon law, there are no legal differences between a registered domestic partnership and a same-sex marriage. This took affect in early 2014 when Federal Judge McShane ordered that same-sex marriage is allowed under Oregon law.

Under Oregon law, registered domestic partnerships are granted all the legal rights and responsibilities of traditional marriage. The difference between the two largely rests in other states’ and jurisdictions’ recognition of an Oregon registered domestic partnership as a valid legal status. Whether a jurisdiction recognizes an Oregon registered domestic partnership will affect which rights and benefits a couple receives while in that jurisdiction. These rights include but are not limited to: access to retirement and pension benefits, hospital visitation rights, and parental rights. For example, under Oregon law, registered domestic partners have rights to receive potential custodial and parenting time rights if the partnership is dissolved. If another jurisdiction does not recognize the Oregon domestic partnership as valid, those rights may not exist in that other jurisdiction.

*Note – registered domestic partnerships should not be confused with unregistered domestic partnerships. Unregistered domestic partnerships are a common law construct (i.e. non-statutory) that can be between same-sex couples or couples of different genders. They are entirely fact-derived circumstances and do not involve formal paperwork with the state. Unregistered domestic partnerships are, essentially, Oregon’s answer to common-law marriage.

With the June 2013 rulings by the U.S. Supreme Court, any same-sex marriage validly licensed under State law is recognized by the federal government.

As with many aspects of same-sex marriage, there are still certain jurisdictional issues to consider. Some federal agencies have differing standards pertaining to how certain benefits are paid out – the complications arise when different agencies use different distinctions for “place of marriage” vs. “place of residence” when doling out federal benefits. This area is quite complicated, and it would be advisable to consult with an expert in federal retirement benefits if you think that you may be entitled to federal benefits.

That depends on the state you’re in. The recognition of same-sex marriages is all over the map from state to state. For example: some states that do not license same sex marriage do recognize valid same-sex marriages from other jurisdictions. It would behoove a same-sex couple to consult with an attorney in a jurisdiction to which they are considering relocating prior to a move. This will allow them to be as certain as possible regarding their legal rights, status, and obligations in a new jurisdiction.

Marriage is the melding of the best of both people’s pasts, with room for new ideas and traditions. Failure to respect the input of a spouse will create deep resentment and will undermine the marriage.